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Saturday, December 13, 2014

The Process! The Process!

Finally, a Supreme Court of Canada appointment made in the good old fashioned way. The way Dickson, Laskin, Cartrwright, Tascherau, Duff and 90% of the others were appointed. No Supreme Court Of Canada Selection Panel of MPs. No phoney appearance before a committee of MPs. The Prime Minister and the Minister of Justice confidentially consulted all who might have ideas on who might be suitable. Prospects were confidentially consulted as to their willingness to serve. And Suzanne Coté was chosen to general acclaim.

But oh the usual suspects are unhappy! The process! The process! The routinely invoked scare word ’secret’ was invoked again. Law professors squawked. Editorial boards harrumphed. How, we are asked, can we have confidence in the Supreme Court of Canada without an ‘open and transparent process’ for appointments?

What evidence is there that we lack confidence in the Court? Its judgments, whether popular or unpopular or just puzzling, are reverently received and respectfully reviewed. Only those agitating for a new process claim our confidence in the Court needs bolstering.

And just how much confidence should we have in the Court? The Court seems confident enough. Neither its judgments nor its way of expressing itself could be called timid. Perhaps we should do well to reflect that the judges are just humans like the rest of us and no process can assure us that they will be so many Solomons.

What exactly the process agitators want is not clear and they could not agree amongst themselves. The demand for openness and transparency would lead at its extreme to the claim that we should elect the judges. But nobody has argued that in Canada for many years.

A halfway house would be some kind of parliamentary confirmation in pathetic emulation of the American model. Senate confirmation could fairly be claimed to have undermined confidence in Supreme Court of the United States in recent decades. In any event, parliamentary confirmation in Canada would require a constitutional amendment and we can’t go there.

The agitators seemed to enjoy the process of the the Supreme Court Of Canada Selection Panel and the appearance of the appointee before a parliamentary committee. But the Selection Panel was either of little importance or unconstitutional, shifting at least some of the power of appointment from the Governor General, with whom it lies under the Constitution, to an ad hoc group of MPs who have no role under the Constitution. The Supreme Court showed in the Senate Reference that it would not accept dodges that would practically change the Constitution without express amendment.

The committee appearance was a complete sham, a pretence of openness when the appointment was already a done deal. Nobody knew what the MPs were supposed to be doing in questioning the incoming judge and they had to be instructed like school children on how to behave themselves.

For all the talk of openness and transparency much of the impetus behind the process agitation seems to be resentment that the Prime Minister gets to appoint the judges. In much of Europe, and now even in the United Kingdom, judges are chosen by august bodies with very little openness and transparency. Most people have no idea how judges are chosen. The result is often that judges choose the judges, with an assist from law professors, something that agitating law professors can warm to.

Under such as system no one is responsible for who become judges. In Canada it is still clear. The government is responsible. If you don’t like their choices you can turf it out.

For the most part even the agitators have not objected to Stephen Harper’s appointments, have even welcomed them, while continuing to witter.

Coté will be Harper’s last appointment before the next election. But after seven Harper Supreme Court appointments the last reason you could have for not wanting another Harper government is fear of a Harper Court.

The half baked process started by Paul Martin and fitfully continued by Stephen Harper may have made some difference. But only by discouraging one or two good judges from serving.

It has done no good and nothing better has been proposed.

We must hope that the Coté will set a precedent for a return to normalcy. We cannot hope that the agitators will dry up.

I have myself very qualified confidence in the Supreme Court of Canada. But I see no solution in better appointments however made. The way to a solution lies in understanding what judges should do and what they are doing, in sorting out the law schools and turning away from our obsession with the politicised American courts and the process by which judges are appointed.